30 Review of Central and East European Law 2005 No.1, 1-5 2005 Koninklijke Brill N.V.

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The Civil Code of the Russian Federation from Foreign and Comparative Law Perspectives: An Introduction
Peter J. Sahlas Abstract
The author provides context to the readers of the six papers featured in this issue of the Review of Central and East European Law, which examine elements of the new Civil Code of the Russian Federation from foreign and comparative law perspectives. A brief history of the milestones in Quebec and Russian experiences in private law codication is supplemented with a narrative describing the lead role played in the latter by the Private Law Research Center in Moscow, and the support role played by, among others, the McGill University Faculty of Law.

This issue of the Review of Central and East European Law features six papers examining elements of the new Civil Code of the Russian Federation from foreign and comparative law perspectives. These papers were written by professors at the McGill University Faculty of Law in the context of an ongoing program of scholarly exchange between Canadian and Russian jurists. Founded in Montreal in 1848, the McGill University Faculty of Law is situated in the province of Quebec, a stronghold of the European civil law tradition in North America. Proximity to the other Canadian provinces and to the United States, where the common law tradition is predominant, has long made the Faculty a center of expertise in comparative law. The Faculty established its Institute of Comparative Law in 1966 to promote research in private, commercial, international and public law from the perspectives of diverse legal traditions. Members of the Faculty have traditionally played instrumental roles in the development of the law, both inside Canada and internationally. Inside Canada these roles have included involvement in the elaboration of two civil codes.The Facultys rst dean, Charles Dewey Day, was one of three commissioners responsible for drafting the 1866 Civil Code of Lower Canada, which remained the primary expression of Quebec civil law for over a century.1 In 1966, a Quebec Civil Code Revision Ofce was created, under the stewardship of the Facultys Paul-Andr Crpeau, with a mandate to reform the code so as to entrench a broad range of modern developments in commercial practice, social values, and related legislative policy and legal theory. After a tremendous, decades-long undertaking, the new Civil Code of Quebec was enacted in 1991 and came into force as of 1994.

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As Quebec was enacting its new code, another massive project of civil law reform was gaining ground in Russia. Civil codes serving communist principles had been promulgated in 1922 and 1964. The Gorbachev-era reforms in the Soviet Union saw incremental steps in market-oriented legislative development. Numerous separate laws were passed serving specic purposes, and operating in layers atop of the legislation of the Soviet Union. In 1991, the Supreme Soviet adopted the remarkably progressive Fundamental Principles of Civil Legislation of the USSR and the Republics. Stillborn in the Soviet Union, the Fundamental Principles were put into effect in the newly-independent Russian Federation in 1992. That year, an intense project of reform was launched in Moscow. Russias leading legal experts were assembled under presidential authority to draft a new Civil Code of the Russian Federation. The drafting mandate was entrusted to the Private Law Research Center of the Ofce of the President of the Russian Federation. The Research Centers work began in earnest in 1992. In order to meet the pressing needs resulting from the new economic conditions prevailing in Russia, the new code was to be introduced in phases. The code was to be organized in the Pandectist tradition, a useful fact considering the relative urgency of establishing bedrock principles. The First Part of the Civil Code of the Russian Federation was enacted in 1994 and came into force in 1995. The Second Part was enacted in 1995 and came into force in 1996.The Third Part, completing the code in its generally agreedupon ambit,2 was enacted and came into force in 2001. In 1999, Presidential Instruction No.268 On Measures Towards the Development of Civil Legislation instituted a Consultative Council on Codication and Development of Civil Legislation. The Council, which oversees the Research Centre, was established as the central administrative authority on Russian civil law reform. The Council formulates civil law reform initiatives and promotes measures towards the effective implementation of recent reforms. The Research Center remains a key source of law reform advisory expertise for the presidential administration, the federal parliament and federal ministries. A further mandate from the Government Heads Council of the Commonwealth of Independent States positions the Research Center to
1. Civil law had existed in Canada since 1663, when Louis XIV decreed that the Coutume de Paris and other elements of the ancien droit franais would form the basis of the private law of the French colony then known as New France. This body of law withstood the transfer of sovereignty to the English crown under the Treaty of Paris in 1763. What was then called Lower Canada, and eventually became the Province of Quebec, developed a patchwork quilt of pre-1763 law, continental French doctrinal writings and judicial decisions and various modications to the regime made by local legislative authority.The drafters of the 1866 code were tasked with reducing the existing law into approximately the same form and structure as that of the Napoleonic Code of 1804, with the addition of a fourth book on commercial law. A Fourth Part may yet be added, on intellectual property law.

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advise member states on the drafting of civil codes and related legislation. In addition to legislative reform work, the Research Center has a pedagogical function through its post-graduate School of Private Law. The School offers post-graduate programs under the supervision of Russias leading legal experts, and it has been cast as a training ground for the next generation of Russias law reform ofcials. Towards the outset of the drafting process, ofcial statements in Moscow declared the intention to create one of the worlds best legal acts of this kind along with the civil codes of The Netherlands and Quebec.3 The Netherlandswhich like Quebec had recently undergone a large-scale reform of its civil codeplayed a key role in providing external advice to the Russian drafters, particularly with respect to the elaboration of what became the First Part and the Second Part of the new Russian code. Of particular note, the Institute of East European Law and Russian Studies of the Leiden University Faculty of Law was extremely well-placed and well-equipped to engage in the Russian reform process, thanks to its long history of academic relations with Russian jurists. In 1996, the McGill University Faculty of Law Institute of Comparative Law launched a signicant research project on Russian civil law reform, working alongside the Leiden group. In subsequent years institutional ties between Leiden and McGill multiplied, building a solid platform for joint research activities on civil law reform in Eastern Europe. The McGill research initially focused extensively on private international law and successions, both topics eventually constituting the Third Part of the new Russian code. The Research Center valued McGills experience in recodication and knowledge of multiple legal systems. In consultation with the Russian drafters, McGill professors provided commentaries on existing legislation, recommendations for draft legislation, concept papers, research papers and research materials. Meanwhile, Russian legal experts afliated with the Research Center provided extensive memoranda on Russian law reform.4 Numerous workshops and seminars took place on both sides of the Atlantic, led by either Canadian or Russian experts. The growing interaction between
3. 4. Rossiiskiie Vesti, 12 October 1993. Some of these memoranda were adapted for publication, to make the doctrinal foundation of new Russian legislation available to a wider audience. See 44 McGill L.J. 1999, 255, Special Issue on Russian Law Reform, including: Mikhail I. Braginsky, Regulation of Entrepreneurship in the Russian Federation; Alexander S. Komarov, The Civil Code of the Russian Federation: General Provisions on Liability for the Violation of Obligations; Oksana M. Kozyr, The Legal Treatment of Immovables Under the Civil Code of the Russian Federation; Mikhail G. Rozenberg, The Civil Code of the Russian Federation and International Agreements; Evgeny A. Sukhanov, The Right of Ownership in the Contemporary Civil Law of Russia; Vassily V. Vitryansky, Insolvency and Bankruptcy Law Reform in the Russian Federation; and Viktor P. Zvekov, The New Civil Code of the Russian Federation and Private International Law.

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Montreal and Moscow also resulted in various book publications, including, of particular note, a Russian-language version of the Civil Code of Quebec in its entirety of 3,168 articles.5 When the Third Part of the Civil Code of the Russian Federation was adopted, it was hailed by President Putin as a landmark in the establishment of civil legislation and an important step in the regulation of the relationship between state, individual and economics and a watershed on the road to a legislative framework for private property.6 The subsequent shift in emphasis from civil code drafting to civil code implementation continues to attract the interest of foreign jurists, and has led to a broadening of the McGill Faculty of Law research project on Russian civil law reform. As from the outset, the research project is funded in large part by the Canadian International Development Agency. The scope of research has expanded to examine numerous questions around systemic implementation issues of civil law reform.What are the limits of transplants of norms from one jurisdiction to another? What socio-cultural conditions pose challenges to the effective implementation of a new civil code? What legal institutions should be reinforced or established to sustain a healthy market-oriented regime of private law? What non-state institutional structures must be in place to ensure the effectiveness of a new civil code, and its usage in the business community and in person-to-person civil relations? The rapid drafting of the new Civil Code of the Russian Federation, completed in the span of just a few years from 1992, was an extraordinary accomplishment in the modern history of law. This accomplishment was all the more remarkable considering that the Russian drafters were neither able to base their draft on a workable existing Russian code, nor able to draw upon a long history of judicial and practical experience. In contrast, the Quebec Civil Code Revision Ofce was not faced with critical urgency, since a functional code was already in place in Quebec, and it enjoyed the luxury of a long history of judicial and practical experience. With the new Russian code now in place, a broadening circle of Russian and foreign legal experts have begun a rigorous and thorough examination of the multitude of provisions therein. The six papers featured in this issue of the Review of Central and East European Law are part of an ongoing process of scholarly exchange between Russian jurists and their foreign counterparts studying the new Civil Code of the Russian Federation.7 These papers are snapshots of a broader work in progress. Such foreign analyses will undoubtedly be inuenced, in varying degrees,
5. Oksana M. Kozyr & Alexandra A. Makovskaia, eds., Grazhdanskii Kodeks Kvebeka, Moscow 1999. Readers of Russian seeking a primer on Quebec civil law should refer to the introduction to the Russian translation of the Civil Code of Quebec, by John E.C. Brierley, 9-18. ITAR-TASS, 26 November 2001.

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by lacunae in contextual knowledge surrounding particular legal regimes, or simply by the necessity of working through translated texts. Despite any such shortfalls, the papers are replete with observations that are of great interest in a comparative law examination of the new Russian code. Their publication herein is intended to contribute to the advancement of international scholarship in the eld of Russian private law reform. The editor of the Review of Central and East European Law is to be commended for his initiative in proposing this forum for publication of the papers, testament to the important facilitating role in this eld that continues to be played by the Institute of East European Law and Russian Studies of the Leiden University Faculty of Law.

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The reference text of the authors is the English translation by Peter B. Maggs and Alexei N. Zhiltsov, The Civil Code of the Russian Federation, Armonk, NY 1997. A revised and expanded version of the Maggs and Zhiltsov translation has more recently been published, including the Third Part of the Russian Code. See Peter B. Maggs and Alexei N. Zhiltsov, Civil Code of the Russian FederationParallel Russian and English Texts Moscow 2003.